The Marriage of a Cheresh

Yevamot (14:1) | Natan Rickman | 12 years ago

The fourteenth perek opens with a discussion dealing with the
halachic status of an action performed by a cheresh – a deaf mute. A
deaf and mute person is considered feeble-minded, and is considered by
Torah law to be legally incompetent. The question at hand is, if this
person either receives or performs kidushin do we view this process as
a binding act that will leave the man and woman married. The Mishnah
rules that a cheresh can indeed get married, yet this marriage is only
binding on a rabbinic level.

The Mishnah comments and explains an interesting practical problem
that if the man is a deaf and mute, how is he able to communicate to his
bride that he wishes to marry her. The Halacha allows the man to hint
to his wife, and if she is mute herself, she is allowed to hint in
return to express her desire to marry.

However, to truly understand what the chiddush of the Mishnah is, we
must first ask why the action of the deaf-mute is not halachically
binding?

Within the Gemara the deaf-mute person is often grouped with two other
types of people, a shoteh and a minor. This ‘famous’ group of three
are often unable to perform certain halachic actions. The problem is
that for an action to be considered valid, both parties need to fully
comprehend what is happening. For example, a child12 who is below the
age of barmitzvah, often would not fully understand that when they
sell an item and receive money or goods in return that they have lost
all rights and claims over the item that they have sold. However, the
Halacha does recognise that the child is able to purchase something
since they can understand the concept of receiving.

The distinction between giving and taking forms one of the main pillars
of Rav Dessler’s ztz”l philosophy. Rav Dessler13 explains:

The faculty of giving is a sublime power; it is one of the attributes
of the Creator of all things. He is the Giver par excellence; His
mercy, His bounty and His goodness extend to all His creatures. His
giving is pure giving for He takes nothing in return.

He later explains that the action of taking is where a person aspires to
draw to himself all that comes within his reach.

This principle of Rav Dessler, which is classically only used for moral
teachings, can however be used to understand the din of the Mishnah
and why the Rabbis allow such a marriage to take halachic status when
the Torah did not.

The general problem is that the cheresh is unable to understand
giving; that there are two parties who after the exchange will have no
legal bond or relationship. However, in the case of kidushin what is
being created is one new entity, as the Torah describes in Bereshit
(2:24) that they should leave their parent’s home and become one. The
cheresh can understand this change in status. However, a regular
case of giving or buying and selling, where there are clearly two
separate parties, the cheresh is unable to comprehend. The act of
giving and losing all connection needs a mature and developed
understanding, which according to the Halacha the cherish does not
have.14

12 The same would apply for both the cheresh and shoteh, either
for the same reason or another reason.